Trump’s second term: Bracing for a renewed focus on immigration enforcement

Donald Trump’s return to the presidency will likely bring significant shifts in U.S. immigration policy, with consequences for employers.

Based on his administration’s past actions and recent pronouncements, businesses should anticipate a surge in worksite enforcement, stricter visa regulations, and increased scrutiny of hiring practices.

Worksite enforcement: The incoming administration has indicated a strong emphasis on worksite enforcement, with a potential return to surprise raids targeting businesses suspected of employing unauthorized workers.

Tom Homan, Trump’s “border czar” pick, has explicitly promised this renewed focus. Beyond raids, employers should also prepare for a significant uptick in I-9 audits. These audits, which surged during Trump’s first term, require swift compliance with document requests and can result in substantial penalties for violations.

Guidance for employers:

• Audit I-9 compliance: Conduct internal I-9 audits to ensure accurate record-keeping. Address any discrepancies and provide comprehensive training to HR and relevant staff on proper I-9 completion and documentation.
• Consider E-Verify: While using E-Verify cannot guarantee immunity from audits, participation can mitigate penalties. Also, review whether you are subject to mandatory state E-Verify laws in any state where you have an employee.
• Prepare for site visits: Train personnel on how to handle unannounced inspections by Immigration and Customs Enforcement (ICE) or other federal agencies. Establish clear protocols for document production and employee interviews.

H-1B Visa Program: The H-1B visa program, a pathway for skilled foreign workers, is likely to face changes. Expect stricter interpretations of “specialty occupations,” increased scrutiny of employer-employee relationships, and potential limitations on third-party placements.

Higher wage requirements and modifications to the lottery system could also impact employers’ access to this vital talent pool.

Guidance for employers:

• Evaluate job descriptions: Ensure job descriptions clearly align with the “specialty occupation” criteria.
• Explore alternative visa options: Consider alternative visa categories (L-1, O-1, etc.) for employees who may no longer qualify for H-1B visas.
• Accelerate H-1B petitions: If possible, file eligible H-1B petitions before new policies take effect.

Increased costs and uncertainty: Employers should anticipate higher costs associated with visa sponsorship, including increased legal fees and potential delays due to heightened scrutiny.

Factor in potential increases in visa application fees, legal expenses, and compliance-related expenditures. Employers should also develop contingency plans and create flexible staffing strategies to mitigate potential disruptions.

Meanwhile, companies should also review their antidiscrimination training, particularly related to recruiting, hiring, and verifying work authorization, to ensure they do not inadvertently “overcorrect” and run afoul of antidiscrimination laws.